A Review of the Recently Revised Guide to Fair Business Practices

In November, AALL’s Executive Board approved a revised, third edition of the Guide to Fair Business Practices. A Task Force oversaw the revision, adding substantive examples or clarifications, and making other, non-substantive changes, as identified in the July 2012 Board Book. The Task Force responded to legal publishing developments since the last revision in 2008. Substantive changes include:

1. a recommendation - ultimately based on the former FTC Guides For the Law Book Publishing Industry [at § 256.2(e)] - that publishers provide, upon request, at least the current and last two years of supplementation costs;
2. emphasis on training for all customer service employees;
3. provisions to notify customers of pending changes in ownership of publications or internal restructurings affecting subscriptions (though without reference to timely notice);
4. clear and conspicuous display of the scope and coverage of electronic and print publications (though without definitions of “clear” and “conspicuous”);
5. deletion of language recognizing a right of publishers to circumvent disclosure pursuant to contractual confidentiality or "proprietary information";
6. instruction to minimize use of confidentiality clauses; and
7. clarification of the terms of trial subscriptions, including those offered as negative option plans (though without guidance of the kind informed by AALL’s own comments on negative option plans.)

The Task Force deserves praise for offering these welcome changes, and the Board deserves praise for adopting them. However, the Fair Business Practices Guide remains a disappointment, especially due to two related problems. First, under the Guide, we concede that "the publisher is in the best position to fully implement the guidelines in a manner suitable to its business plan." As a result, a publisher need not "fully implement" - and perhaps may effectively disregard - the guidelines for any unfair business practice "suitable to its business plan." Moreover, institutional buyers also have business plans. But we acknowledge no harm to their business plans from unfair business practices, notwithstanding our duty to "to obtain the maximum value for our institution's fiscal resources." (AALL Ethical Principles)

Second, we missed an important opportunity. The Consumer Advocacy Caucus recommended sweeping changes to strengthen consumer protections. See July 8, 2012 Comments by the Consumer Advocacy Caucus submitted to the Fair Business Practices Guide Task Force. Our Caucus sought a rigorous system to monitor Guide violations, with an annual report to the membership of complaints that CRIV could not resolve. We also proposed using data in the annual reports to identify and pursue needed government interventions or regulation, particularly where unfair business practices have become "suitable to" the business plans of industry participants.

Of course, our proposed system of oversight would likely require changes. We therefore asked the Task Force to host a membership-wide forum about our recommendations. We hoped to explore room for compromises, so that we could move AALL closer to consensus over how to advocate for consumers of commercial legal publications. Unfortunately, the Guide still falls well short of the advocacy consumers might otherwise expect from AALL.

Michael Ginsborg
Consumer Advocacy Caucus Chair, 2011-2012